United States District Court, D. Connecticut
MEMORANDUM OF CONFERENCE AND RULING ON MOTIONS
HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
On May 10, 2016, this Court held a telephonic Discovery and Case Management Conference on the record to address plaintiff’s pending motions. Plaintiff Franklin Brown (“plaintiff”), appearing pro se, and counsel for defendants, Attorney Christopher A. Clark, participated in the conference. The following summarizes the pertinent discussions held during the May 10, 2016, conference.
I. Motion for Mental Examination of Plaintiff [Doc. #45]
Pending before the Court is a motion filed by the incarcerated pro se plaintiff seeking an order pursuant to Rule 35 of the Federal Rules of Civil Procedure for a mental examination of the plaintiff. Plaintiff argues that the mental examination is necessary to prove his claims of Post-Traumatic Stress Disorder and depression; to prevent the dismissal of his case for lack of medical evidence or testimony; and because he has not received any mental health treatment since his incarceration. [Doc. # 45 at 1, 2].
As articulated on the record at the conference, Rule 35 empowers the Court to order a party to submit to an examination at the request of the opposing party, but the Rule “does not authorize a party to file a motion for his own ... examination.” Jenkins v. Doe, No. 3:09CV1194(SRU), 2011 WL 121682, at *1 (D. Conn. Jan. 13, 2011) (citing Green v. Branson, 108 F.3d 1296, 1304 (10th Cir. 1997)); see also Funderburke v. Canfield, No. 13CV6128, 2014 WL 6390577, at *1 (W.D.N.Y. Nov. 7, 2014).
Further, Rule 35 cannot be used to secure medical treatment. See Jenkins, 2011 WL 121682, at *1 (“Although the injury to the plaintiff’s knee is a matter in controversy as alleged in the amended complaint, the plaintiff’s motion is simply an attempt to obtain medical treatment for his injury. Thus, the plaintiff’s motion for an examination pursuant to Rule 35, Fed. R. Civ. P., is denied.”); see also Green, 108 F.3d at 1304 (upholding denial of an inmate’s Rule 35 motion where the purpose was to obtain medical care). Accordingly, plaintiff’s Motion for Mental Examination [Doc. #45] is DENIED. To the extent that plaintiff seeks medical treatment while incarcerated, the Court encourages plaintiff to request treatment at his facility.
II. Motion for Appointment of Expert Witness [Doc. #46]
Plaintiff seeks the appointment of an expert witness at Court expense. [Doc. #46]. Plaintiff requests an expert to establish “the environmental conditions at night.” Id. at 1. He also seeks an expert “to establish if the defendants had probable cause.” Id. The decision to appoint an expert “is committed to the sound discretion of the district court.” Azkour v. Little Rest Twelve, Inc., __ F. App’x __, 2016 WL 1459239, at *2 (2d Cir. Apr. 14, 2016). That decision “is to be informed by such factors as the complexity of the matters to be determined and the Court’s need for a neutral, expert view.” Pabon v. Goord, No. 99CV5869(WHP)(THK), 2001 WL 856601, at *1 (S.D.N.Y. July 30, 2001); see also Scott v. Spanjer Bros., Inc., 298 F.2d 928, 930-31 (2d Cir. 1962).
The pro se plaintiff’s motion references Rule 702 of the Federal Rules of Evidence, which relates to the testimony of expert witnesses. Rule 706 permits a court to appoint an expert witness, but not as a partisan for one party or another. “The appointment of an expert witness pursuant to Rule 706 is not intended to aid litigants, but rather to aid the Court, through the services of an impartial expert, in its assessment of technical issues.” Brown v. Johnson & Johnson Pharm., No. 12CV01381(MPS), 2015 WL 235135, at *2 n.1 (D. Conn. Jan. 16, 2015) (internal citations and quotation marks omitted). Thus, appointment of an expert under Rule 706 is not proper here.
Construing plaintiff’s motion, in the alternative, as seeking court funding for a retained expert in support of plaintiff’s case, the motion also fails. As discussed on the record, a “court may admit expert testimony if it finds that ‘scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.’ Fed.R.Evid. 702. If the testimony is instead directed solely to ‘lay matters which a jury is capable of understanding and deciding without the expert’s help, ’ Andrews v. Metro-North Commuter R.R. Co., 882 F.2d 705, 708 (2d Cir. 1989), the testimony is properly excludable.” United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991).
Here, the effect of darkness on a person’s ability to observe events is well within the purview of a lay jury, and no expert testimony is required. It also would not be proper to admit expert testimony on the presence or absence of probable cause in this case. “Questions of law are for the court.” U.S. v. Ingredient Tech. Corp., 698 F.2d 88, 97 (2d Cir. 1983) (affirming exclusion of proposed expert witness testimony); Hygh v. Jacobs, 961 F.2d 359, 363 (2d Cir. 1992) (“This circuit is in accord with other circuits in requiring exclusion of expert testimony that expresses a legal conclusion.”). Accordingly, plaintiff’s Motion for Expert Witness [Doc. #46] is DENIED.
III. Motion to Appoint Counsel [Doc. #26]
Plaintiff’s Motion to Appoint Counsel, previously taken under advisement, remains pending. As discussed at the conference, the decision whether to appoint counsel for a pro se party is left to the discretion of the Court, which considers criteria including “the merits of plaintiff’s case, the plaintiff’s ability to pay for private counsel, his efforts to obtain a lawyer, the availability of counsel, and the plaintiff’s ability to gather the facts and deal with the issues if unassisted by counsel.” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989).
Plaintiff stated on the record that he has contacted several lawyers and continues to attempt to locate counsel. As the Court noted at the conference, plaintiff must also make a threshold showing of some likelihood of merit. “Even where the claim is not frivolous, counsel is often unwarranted where the indigent’s chances of success are extremely slim.” Hodge ...